Smith v CSR Limited

[2024] NSWDDT 14

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Smith v CSR Limited & Ors [2024] NSWDDT 14

Hearing dates:

19 November 2024

Date of orders:

21 November 2024

Decision date:

21 November 2024

Before:

Russell SC DCJ

Decision:

(1)   Dismiss the Notice of Motion filed by the plaintiff on 29 October 2024.

(2)   Order each party to pay his or its own costs of the Notice of Motion.

Catchwords:

DUST DISEASES – subpoena – application to set aside – legitimate forensic purpose – documents produced may throw light on the issues in the substantive proceedings – defendants are entitled to put plaintiff to proof – documents could bear upon reliability of plaintiff’s evidence concerning exposure event

COSTS – parties to pay their own costs – dispute could have been avoided if a plain English explanation was given when a plain English question was asked

Cases Cited:

Ahmed v Ahmed [2013] NSWSC 1814

National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372

SingTel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526

Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

Category:

Procedural rulings

Parties:

Peter Ronald Smith (Plaintiff)
CSR Limited (First Defendant)
Midalco Pty Limited (Second Defendant)
Shire of Ashburton (Fourth Defendant)

Representation:

Counsel:
S Tzouganatos (Plaintiff)
D Miller (solicitor) (First and Second Defendants)
D Andersen (solicitor) (Fourth Defendant)

Solicitors:
Segelov Taylor Lawyers (Plaintiff)
Colin Biggers & Paisley (First and Second Defendants)
HWL Ebsworth Lawyers (Fourth Defendant)

File Number(s):

DDT 2024/236979

Publication restriction:

Nil

JUDGMENT

Introduction

1. By a Statement of Claim filed on 27 June 2024 the plaintiff Mr Peter Ronald Smith seeks damages against six defendants. Mr Smith suffers from malignant mesothelioma. He is 74 years old.

2. The first defendant CSR Limited (CSR) and the second defendant Midalco Pty Ltd (Midalco) are alleged in the Statement of Claim to have conducted the mining and milling of blue asbestos in the Wittenoom Gorge in Western Australia between 1943 and 1966.

3. The fourth defendant Shire of Ashburton (Ashburton) is alleged in the Statement of Claim to be the local government authority responsible for the town of Wittenoom and the nearby mining leases.

4. In his Statement of Particulars filed on 15 August 2024 Mr Smith alleges that in 1975 he travelled to Wittenoom with Mr Michael Doepel, who was a geology student. A third geology student travelled with them, but Mr Smith cannot recall his name. Mr Smith was asked to go to Wittenoom by Mr Doepel to assist in taking samples from the Wittenoom mine.

5. In par 4.1 of the Statement of Particulars Mr Smith says:

“During the trip we went to the township of Wittenoom. When we drove into Wittenoom there was nobody around. It was a ghost town. There were houses but these were deserted. There were no businesses and we did not see any other people, tourists or residents. We drove around the township for a while. We then got out and walked to the mine, about 400 metres.”

6. In par 4.1 of the Statement of Particulars Mr Smith says that the three men entered the mine and walked in about 200 metres. Mr Smith could see “solid rock with seams of hairy glinting silvery stuff, which I was told was asbestos”. The three men looked around the mine for about half an hour before they returned to their vehicle and left. They were in Wittenoom for about three hours.

7. The Statement of Particulars provides no corroboration for the assertion of Mr Smith that he was exposed to blue asbestos at the Wittenoom mine in 1975. There are no documents attached to the Statement of Particulars and there is no statement by Mr Doepel.

8. The first, second and fourth defendants do not accept, without further proof, the assertion made by Mr Smith that he was exposed to blue asbestos at Wittenoom in 1975. In a letter dated 29 October 2024, the solicitor for CSR and Midalco wrote to the solicitor for the plaintiff and stated:

“Mr Smith describes Wittenoom as a ‘ghost town’. In 1975 Wittenoom was still an active regional centre for the Pilbara. We understand that in 1977 there were approximately 175 residents in Wittenoom and there were a number of businesses operating in and around the township. There is a real question as to whether Mr Smith visited the town of Wittenoom.”

Subpoena Issued by Ashburton

9. Mr Smith worked as a teacher at TAFE NSW (TAFE) between 1980 and 2013. Ashburton issued a subpoena to TAFE seeking production of employment records relating to the plaintiff, including but not limited to:

1. Resumé and/or curriculum vitae of the plaintiff.

2. Any and all claims for compensation.

3. Employment contracts.

4. Holiday leave forms.

5. Sick leave forms.

6. Letters.

7. Memoranda.

8. Correspondence.

9. Job descriptions.

10. Work diaries.

11. Training certificates.

12. Training coursework.

13. And any other documentation relating to the employment or training.

10. TAFE has produced the documents which are the subject of the subpoena and has no objection to inspection of the documents.

11. Mr Smith has filed a Notice of Motion, which is the subject of this judgment, seeking to set aside the subpoena issued by Ashburton to TAFE.

12. By a letter dated 25 October 2024 the solicitor for Mr Smith wrote to the solicitor for Ashburton in connection with the subpoena. The letter asserted that there was no forensic purpose in the subpoena, pointing out that there was no claim for economic loss. The letter asserted that the subpoena was a “fishing expedition”. The solicitor for Mr Smith invited the solicitor for Ashburton, prior to any application being made, to advise the forensic purpose of the subpoena.

13. By letter dated 29 October 2024 the solicitor for Ashburton responded as follows:

“1. We refer to your letter dated 25 October 2024, a copy of which is enclosed.

2. The Subpoena to Produce on TAFE NSW has been issued on the basis of our investigations, in respect of which our client does not waive privilege.

3. The records sought will bear upon the existence or otherwise of a duty of care on the part of our client and alleged breach thereof.”

14. After receiving that response, the solicitor for Mr Smith filed the present Notice of Motion on 29 October 2024, supported by the affidavit of Ms Segelov of the same date (PX 1).

15. Ashburton relied upon the affidavits of Mr S Hay solicitor dated 4 November 2024 (DX 1) and 13 November 2024 (DX 2).

16. Mr Smith and Ashburton relied upon written submissions (MFI 1 and MFI 2 respectively). Oral submissions were made for Mr Smith, Ashburton, and CSR and Midalco.

Applicable Principles

17. The principles applicable to subpoenas, and whether they should be set aside, are as follows:

1. The documents sought must be of apparent relevance to the issues in the proceedings – National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 385.

2. The documents must be reasonably likely to add in some way or other to the relevant evidence in the case – Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927.

3. It is sufficient if the documents could “possibly throw light on” the issues in the substantive proceedings, or it appears “on the cards” that they will do so – Ahmed v Ahmed [2013] NSWSC 1814 at [21].

4. The issues in the substantive proceedings are gleaned from the pleadings, the affidavits and the legal principles which govern the claim for relief in the substantive proceedings – SingTel Optus Pty Ltd v Weston [2011] NSWSC 1083 at [21]; (2011) 81 NSWLR 526.

18. Counsel for Mr Smith submitted that there was no legitimate forensic purpose in relation to the TAFE subpoena. The solicitor for Ashburton, supported by the solicitor for CSR and Midalco, submitted that there was a legitimate forensic purpose.

Consideration

19. The defendants drew attention to the allegation made by the plaintiff, concerning a three-hour visit to Wittenoom, which occurred 49 years ago. The defendants are entitled to put the plaintiff to proof on that matter, and to conduct their own case to cast doubt upon any evidence given by the plaintiff that he was exposed as alleged at Wittenoom in 1975.

20. In particular, the defendants point to the allegation made by the plaintiff in his Statement of Particulars that when he and his colleagues went to Wittenoom it was a “ghost town” and there was no one around. The defendants have evidence, which was set out in the letter from the solicitors for CSR and Midalco referred to above, to show that people were living in Wittenoom in 1975 and that businesses were being conducted there.

21. The defendants wish to make a case that Mr Smith was not exposed at Wittenoom in 1975 as alleged. This case has two limbs. Either Mr Smith was not there at all, or if he did go to Wittenoom, it was at a time well after 1975, when Wittenoom truly was a “ghost town” and everyone had left.

22. If the first limb of the defendants’ argument succeeds, Mr Smith will fail in his case. If the second limb of the argument succeeds, there are implications for whether there was a duty of care cast upon each of the defendants at the time of the visit, and whether there was a breach of that duty at the time of the visit.

23. The defendants in this case are faced with an allegation of a tort committed over a period of three hours, 49 years ago. The submission was that there could be documents in the TAFE records which would bear upon whether or not Mr Smith did go to Wittenoom in 1975. It was pointed out that Mr Smith started working for TAFE in 1980. He was a teacher there involved in the sciences, although initially in biology rather than geology.

24. The defendants have no way of knowing whether there is any material in the TAFE records which casts doubt or light upon the allegation concerning a 1975 visit to Wittenoom. But there could be. For example, the documents might include notes about vacations or leave taken.

25. There was medical evidence put forward on the Motion (DX 2) to suggest that for many years Mr Smith has suffered from mental health issues, including memory problems. From time to time he has been confused, sometimes to the point of mania. Some of these problems were evident to medical practitioners while Mr Smith was still working at TAFE up until 2013. There could well be material in the TAFE records which bears upon the question of the reliability of any recollection by Mr Smith. Further, it was submitted that any material in the TAFE records concerning mental or physical problems would have a bearing upon general damages.

26. Any party in the position of the defendants in this case has only a very limited opportunity to test the plaintiff’s case on exposure. In my view, records maintained by an employer, which commenced only five years after the alleged visit to Wittenoom in 1975, and which then cover 33 years of employment, might have something in them which bears either upon the accuracy of the assertion made by Mr Smith about exposure, or about his reliability generally as a witness.

27. As explained in submissions (but not in the letter which was sent to the plaintiff’s solicitor when Ashburton was asked to identify the legitimate forensic purpose of the subpoena) the TAFE documents could possibly throw light on a crucial issue in the substantive proceedings. It must be kept in mind that it was Mr Smith himself who said in his Statement of Particulars that Wittenoom was a ghost town when he and his colleagues went there, and that there was no one around and no one to be seen. Clearly the defendants have evidence to contradict this, which would cast doubt upon the exposure history given by Mr Smith.

28. I am of the view that there is a legitimate forensic purpose in the TAFE subpoena. I therefore decline to set that subpoena aside and the Notice of Motion will therefore be dismissed.

Costs of the Notice of Motion

29. At the hearing of the Motion a persuasive case was put forward by the solicitor for Ashburton, supported by the solicitor for CSR and Midalco, that there was a legitimate forensic purpose in issuing the subpoena to TAFE. It is unfortunate that when the solicitor for Mr Smith wrote to the solicitor for Ashburton before filing the Motion, asking for that legitimate forensic purpose to be identified, the response (PX 1 annexure B) did not set out the forensic purpose of the subpoena. The parties could have avoided the time and expense involved in this Motion, if a plain English explanation had been given in response to the plain English question asked by the solicitor for the plaintiff.

30. While the plaintiff has failed on his Notice of Motion, and the fourth defendant has succeeded, I do not think that the fourth defendant should have a costs order against the plaintiff. If the cogent explanation put forward on the hearing of the Motion had been advanced prior to the filing of the Motion, the parties could have avoided this interlocutory dispute and got on with pursuing the matter through the Claims Resolution Process. In the circumstances I find that the appropriate order is that each party pay his or its own costs of the Notice of Motion.

Orders

31. The orders of the Tribunal are:

1. Dismiss the Notice of Motion filed by the plaintiff on 29 October 2024.

2. Order each party to pay his or its own costs of the Notice of Motion.

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Decision last updated: 21 November 2024